From my perspective, this is fun. Here in the U.S., we tend to see Internet filtering as something other countries do, and usually “bad” countries at that (China, Iran, etc.). My latest project tries to make filtering unexceptional – to point out that most countries block stuff – and to suggest ways we can think consistently about what’s legitimate in on-line censorship.

3 Responses to “The Next Domino: Qwest filters the Web”

I prefer “troubling” instead of “fun,” but will accept “interesting” as a compromise.

The problem with Internet filtering is that if becomes common and successful in the U.S., the Internet will be the first major two-way communication mechanism subjected to prior restraint of speech based on content. We can mail or telephone whatever we wanted to whoever we wanted, and the most we had to worry about was that the government—with a warrant one still hopes, though the new FISA bill looms—could read or hear what we were saying, but not prevent us from saying it. But with ISP filtering, the judgment of a few huge telecomm countries (probably “advised” by government entities) would control what we can see or read over the Internet. As corporations free from First Amendment demands but subject to profit motives, it’s a fair bet they’d err on the side of overfiltering.

Child porn is the gateway drug of speech suppression. Just try to find an advocate for it. But once we’ve justified prior restraint for any content—even child porn—haven’t we opened the door just a crack to all kinds of content-based prior restraint?

I haven’t read your article, but it seems to me that one major difference between the U.S. and most countries is that the First Amendment’s guarantees of free expression are much stronger than those in most countries (even democratic countries). ISPs aren’t government actors, of course, but the motivation for filtering seems motivated by governmental interests (the setup and management cost of filtering probably outweighs any benefit in network traffic reduction, so ISPs wouldn’t consider filtering if there weren’t some other force encouraging them to do it). The current environment is that telcos and ISPs will get forgiveness for doing what the government wants, but rue going against the government’s wishes. Is it really fair to consider ISP actions completely free from First Amendment implications under those conditions?

It’s a shame ISPs weren’t forcibly shoved into common-carrier status. Then silliness like content-based filtering would be explicitly forbidden.

These are all great points, and I agree with you. The interesting question is how moving away from common carrier-like transport will affect ISPs. I’d be quite wary of agreeing to pick and choose among content, at the risk of losing protection under the DMCA and other relevant statutes. (One might wonder whether spam blocking counts; I don’t think so.)

This is the advent of the filtering era in the U.S. State actors (NY’s Attorney General, California’s governor, probably federal entities soon) have managed to get via informal agreement what they failed to obtain via federal statute (COPA, CDA, etc.). This follows the pattern we’ve seen emerging in Western Europe: ISPs, even with common carrier protection under EU directives, decide to go along with government efforts at filtering to avoid bad publicity and the threat of legislation. And you’re exactly right that kid porn is the thin edge of the wedge: most successful Internet regulation thus far has focused on keeping kids safe. Child porn is sufficiently evil that arguments based on other considerations tend, in public debate, to be eclipsed. But filtering is a blunt tool, and we need to consider what level of overblocking, or other harm, we’ll tolerate in order to reduce viewing of child porn via the Web or Usenet. (Implicit here is that we always have other options: going after producers or end users, and so forth.)

I suspect a state action claim might work well in terms of a First Amendment challenge – we’ll just need to wait for the right plaintiff. But this is really a question of standing and of constitutional law; I’m expert in neither.

One of the neat issues in Internet law was whether the Net was going to be more like a newspaper or more like TV. Newspapers are pretty immune from regulation, particularly prior restraint (Pentagon Papers, etc.). TV isn’t: the FCC can fine one for indecency, and we can force porn onto scrambled channels and the like. Reno v. ACLU made it seem that the Net was a newspaper (or, in Justice Stevens’s words, a soapbox). We’re seeing determined efforts to shove it towards TV.

My worry – and yours, I think – is that there are many bad things on the Internet: defamation, violence, hate speech, copyright violations, incitement to terrorism, LOLCat sites, you name it. There’s no obvious reason that the opponents of each of these can’t demand that ISPs also eliminate the social harms they cause by filtering. The question that I wonder about now is not whether filtering will occur – we’re past that point, with an unfortunate lack of serious debate – but how we’ll decide what’s blocked and what stays.